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     This matter was called for trial on 1June 25, 2002. The trial was continued on June 26, 2002. Closing arguments were filed on July 18, 2002 and heard on August 13, 2002. Sasaki George, MLSC, appeared for the Plaintiff. Defendant was represented by Akiyusi Palsis. The following witnesses testified at the trial: Swithson Robert, Timothy Semuda, and Rooston Abraham.

      This matter is an action for breach of contract and for enforcement of customary settlement. The settlement at issue concerns parcels 017-K-12 and 017-K-14, also call Yaal, in Lelu Municipality. Following the trial and closing arguments, I took the matter under advisement. This memorandum of decision sets forth the Court’s decision and reasoning.

      The Plaintiffs reside on a portion of parcel 017-K-14. The Plaintiffs and their ancestors have resided on that portion of parcel 017-K-14 for at least forty years, through several generations. The Plaintiffs have used and continue to use parcel 017-K-12, which is the parcel on the oceanside of the road.

      On March 18, 1974, Tulen Semuda, father of the Defendant, executed a witnessed document in which he granted to Palokoa Semuda and his heirs rights to permanent usage of parcels 017-K-12 and 017-K-14. Sepe Ittu and the Plaintiffs are heirs of Palokoa Semuda. Through Land Commission proceedings, Tulen Semuda was later determined to be the owner of parcels 017-K-12 and 017-K-14, and was issued the Certificates of Title for these two parcels on August 12, 1975. Plaintiffs continued residing on parcel 017-K-14 and using parcel 017-K-12 during this time. Tulen Semuda allowed the Plaintiffs, through Palokoa Semuda, continued usage of parcels 017-K-12 and 017-K-14 for as long as they wished, without any limitation in time.

     Tulen Semuda passed away in 1979. An heirship proceeding was held by the Kosrae State Land Commission in 1982 to determine ownership of all land owned by Tulen Semuda. On January 30, 1986, the Land Commission issued its Determination of Heirship for parcels 017-K-12 and 017-K-14. Timothy T. Semuda, son of Tulen Semuda, was determined to be the owner of both parcels. Additional Determinations of Heirship were issued by the Land Conmmission regarding other land owned by Tulen Semuda, however these other parcels are not subject of this proceeding.

      The Estate of Sepe Ittu, as the heirs of Palokoa Semuda, appealed the Determination of Heirship for parcels 017-K-12 and 017-K-14 on April 16, 1986. Other parties also appealed Determinations of

Heirship that were issued for other parcels. The consolidated appeal was docketed at Kosrae State Court as Timothy Semuda v. Atchuo Semuda, Civil Action No. 22-86. From 1986 to 1998, the appeal progressed slowly, with several briefs being filed and with continuing settlement negotiations taking place among the parties. By January 21, 1998, all parties to the appeal, except the Estate of Sepe Ittu and Timothy Semuda, had settled their claims and were dismissed from the appeal.

      At a status conference held by this Court in December 1990, the parties reported that a customary settlement had been reached, and that the Defendant had promised to grant ownership of a portion of parcel 017-K-14 to the Plaintiffs. However, at that time the Defendant’s promise had not been reduced to writing. Counsel for the Plaintiff had prepared several versions of the proposed deed, however Defendant had refused to sign all of them. No further action was taken until seven years later, in 1997.

       The appeal in Civil Action No. 22-86 was finally set for hearing by the Court in June 2000. The Plaintiffs, who were the appellants in Civil Action No. 22-86, requested the Court to postpone the appeal and to determine the customary settlement reached by the parties. The parties were ordered to meet and finalize their settlement, for the subdivision of parcel 017-K-14, pursuant to their meeting and customary settlement in 1989. The customary settlement was prepared in writing,, but again the Defendant refused to execute the settlement document. Defendant disagreed with the sketch of the proposed subdivision, claiming the sketch did not accurately reflect the settlement reached in 1989. The Defendant again refused to acknowledge in writing his customary settlement with the Plaintiffs, which had formed the basis for resolution of the appeal in Civil Action No. 22-86. The Court dismissed the appeal in Civil Action No. 22-86 on December 14, 2000, without reaching any merits of the appeal. Judgment was not entered. This action followed, with Plaintiff’s claims of breach of contract and for enforcement of customary settlement.

      In approximately November or December 1989, the parties reached a customary settlement regarding the portion of parcel 017-K-14 that was being used by the Plaintiffs for their residence. The customary settlement was made verbally between the Defendant and Swithson Robert, as representative for the Plaintiffs. Defendant promised to subdivide parcel 017-K-14 and grant ownership of the subdivided parcel to the Plaintiffs in settlement of the dispute. Defendant conditioned his promise to the Plaintiffs: if the Defendant was successful in the appeal, then he may modify the settlement to the Plaintiffs regarding the portion of parcel 017-K-14. The Plaintiffs acknowledged the Defendants promise with the condition. The customary settlement was never reduced to writing. Following the customary settlement, the parties went together to the parcel 017-K-14 together with the Land Management Division employees to have the monuments planted for the subdivision process. During that site visit, the land Management Division employees placed monuments designating the area to be subdivided from parcel 017-K-14. Rooston Abraham was a witness when monuments were placed for the subdivision of parcel 017-K-14. He testified under oath, that the monuments were placed at locations to mark the subdivision boundaries, pursuant to the instructions of the Defendant. A field drawing of the parcels, the monuments, and the proposed subdivision was prepared by the Land Management Division.

     Since the customary settlement in 1989, the Plaintiffs have not made in any change in their usage of the parcels 017-K-12 and 017-K-14, in anticipation that the customary settlement would be formalized and implemented.

II. Legal Analysis .

      The March 18, 1974 document executed by Tulen Semuda granted Palokoa Semuda and his heirs, including the Plaintiffs, a permanent land use right to parcels 017-K-12 and a portion of 017-K-

14. Pursuant to this land use grant, the Plaintiffs are entitled to use these parcels for as long as they wish. The Defendant cannot revoke the land use grant made by Tulen Semuda to Palokoa Semuda and his heirs, unless they caused problems.

     The parties reached a customary settlement in 1989, in which the Defendant promised to grant the Plaintiffs the subdivided portion of parcel 017-K-14 in fee simple. Defendant’s promise was made with a condition, that if the appeal in Civil Action No. 22-86 was favorable to him, that he would modify his settlement offer. The Plaintiffs acknowledged that condition. During the course of the appeal proceedings, Plaintiffs requested postponement of the appeal, and attempted to formalize and enforce the customary settlement.

      I conclude that the Plaintiffs’ filing of the appeal action in Civil Action No. 22-86 was not a breach of the Defendant’s condition and was not a breach of their customary settlement. The appeal was filed in 1986; the customary settlement was made later in 1989. Further, the appeal was not decided in the favor of the Defendant. There was no adjudication made by the Court on the merits in the appeal in Civil Action No. 22-86. The appeal was dismissed for failure to prosecute. There was no judgment entered in Civil Action No. 22-86. The Defendant’s condition regarding his promised grant of a portion of parcel 017-K-14 has been satisfied. Therefore, the customary settlement and the Defendant’s promise are enforceable. The Plaintiffs are entitled to be registered as fee owners of that portion of parcel 017-K-14, as specified in the field drawing and monuments placed by the Land Management Division at the site visit with the parties in 1989 or 1990. Title to the remaining portion of parcel 017-K-14 shall be registered to Timothy Semuda.

      The Plaintiffs are entitled to continued use of parcel 017-K-12, on a permanent land use basis, pursuant to the grant of land use made by Tulen Semuda to Palokoa Semuda and his heirs in 1974. Title to parcel 017-K-12 shall be issued in the name of Timothy Semuda, as fee simple owner. The Certificate of Title to parcel 017-K-12 shall also reflect the permanent land use right by the Heirs of Palokoa Semuda.

      Judgment is entered in favor of the Plaintiffs and against the Defendant. The Plaintiffs are awarded fee simple ownership of that portion of parcel 017-K-14 as granted by the Defendant in 1989. The Kosrae Land Court shall complete the requirements for subdivision of parcel 017-K-14, based upon the boundaries specified in the site visit, monumentation and field drawings made by the Land Management Division. After the subdivision procedural requirements are completed, the Certificate of Title shall be issued to Heirs of Julie S. Robert in fee simple for the subdivided portion of parcel 017-K-14. The Certificate of Title for the remaining portion of parcel 017-K-14 shall be issued to Timothy Semuda in fee simple.

     The Plaintiffs are awarded a permanent land use right to parcel 017-K-12, as granted by Tulen Semuda in 1974. The Land Court shall issue the Certificate of Title for parcel 017-K-12 in fee simple to Timothy Semuda. The Certificate of Title shall reflect the permanent land use right by the Heirs of Palokoa Semuda.

     The Kosrae Land Court shall complete all necessary actions to subdivide parcel 017-K-14 and issue the Certificates of Title for the subdivided parcel, parcels 017-K-12 and 017-K-14, no later than March 30, 2003.

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